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Monday, November 26, 2007


Spotlight on 2nd Amendment case

The Supremes have decided to take on a 2nd Amendment case that could decide once and for all whether the right to bear firearms is an individual right or a collective one that constitutionally enabled and protected state militias. The Amendment reads "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

In its historical context, the Amendment is part of the Bill of Rights, ten original amendments that represented a compromise between the Federalists and anti- Federalists necessary to get the Constitution ratified by all of the states. The thrust of these amendments is to protect individual rights and freedom, with the exception being the Tenth which reserves rights not delegated to the Congress to the States and to the People.

Otherwise, the term "the people" refers to individuals. There is no reason to believe that the same term in the operative clause of the Second Amendment does not also refer to individuals.

As I read it, the reference to the militia is merely a rationale for the operative clause that sidestepped the other arguments that might have been made to safeguard the right to own weapons. In the 18th century, when a militia was mobilized, it was expected that the volunteers would bring their own weapons. If the population were disarmed for any reason, it would be virtually impossible to organize a militia.

Fast forward to the 21st century. The right to bear arms is under attack by gun control advocates. The closest thing we have to a militia is the National Guard, and weapons are often supplied to reservists. Is the 2nd Amendment inoperative, outdated, or does it merely survive an obsolete rationale to exist on its own merits? D.C. will argue (in favor of preserving its ordinance) that the Amendment is now inoperative since its reason for being is outdated. The NRA and gun owners will argue that the operative clause survives the original rationale.

The political merits of the case are also a matter of dispute. On the surface, removing a significant number of weapons from society should reduce urban violence. However, the other side of the argument is that disarming the peaceful members of the community will only embolden the criminal element that will obtain guns illegally if necessary. Could an armed Samaritan have short circuited the Virginia Tech massacre or similar incidents around the country? Some think so.

The statistics don't provide much comfort for gun control advocates. In his op ed piece in the WSJ last week, Mike Cox, Michigan AG, wrote that "crime rose significantly after the gun ban (in D.C.) went into effect...during the 30 years since the ban, the murder rate has only once fallen below what it was in

Last night's Cold Case episode indirectly raised a lot of the issues with gun control, when a fictional loose cannon police officer actually provided a gun to a coed to use to protect herself from a serial rapist who was considered a threat to repeat. The gun ultimately proved to be the weapon that terminated the rapist though a different person pulled the trigger in what was ultimately determined to be justifiable homicide, a conclusion satisfying to most viewers (though it may have left a few lawyers queasy). Nonetheless, the question was raised, if you are violated and the police refuse to take action or provide protection, at what point and to what limit are you entitled to defend yourself?

it appears that candidate Guiliani has moved from gun control advocate (as NY Mayor) to gun ownership advocate. Perhaps, as has been suggested, he is merely responding to the GOP primary electorate, but I wonder if he also hasn't come to the conclusion that his success at reducing violent crime as Mayor was less because of gun control than it was a result of a more determined and capable police force. That success has continued under the leadership of NY's current Police Chief Kelly, who has approached the job with as much determination but perhaps a little more thoughtfulness and sensitivity than his predecessors.

Back to the Court - the decision is almost certain to be 5-4 with Scalia, Thomas, Roberts, and Alito lining up against Stevens, Souter, Ginsburg and Breyer, leaving Kennedy to again decide for the Court. I have never owned a weapon and wouldn't want to, but I also believe the Constitution means what it says, and therefore I hope Kennedy rules for the 2nd amendment and against the D.C. ordinance. Is that unfair to the clear majority in D.C. who want to ban weapons. No - if the Constitution means anything, it forbids states or the District from enforcing ordinances that remove rights protected by that document. When certain states denied some of their citizens their voting rights in the 1950's and 60's, people made great sacrifices, even giving up their lives, to make the point that Constitutional rights had to be protected against state prejudices. The point was correct then and it is correct today.

Finally, we should all remember that the Constitution is a living document, but its dynamism stems from its Amendment procedures, not from the desire by many to reinterpret it according to "current standards" or what they deem to be the informed position on an issue. It may or may not be that gun control laws could be a positive thing, and there is no reason why permits and registration of weapons should not be required. What is not disputable is that there are specific procedures in the Constitution for changing it, but there is no chance in the foreseeable future that a consensus exists to overcome the political obstacles for Amendment either by gun control advocates seeking to overturn the Second Amendment or by gun ownership advocates seeking to make the Amendment right more explicit.


Thanks to musings readers for putting the blog over 1000 hits. I am not sure what this says about how we folks choose to spend our time or whether it is sillier for all of you to look at this drivel than it is for me to write it, but I will continue to do so as long as there is interest and I have anything to say. A reminder that comments are welcome.


The market continues to take a shellacking and there is no immediate end in sight. Still, I keep buying, getting better and better prices as we go. On 11/19, I added to my position in Boyd Gaming (BYD), buying 100 at 38.25, a zero buy and a small average down. Last Wednesday, I bought 100 shares of Lowes (LOW) for the bargain price of 22.27 a value buy - yes LOW! Today, I bought 100 shares of Stiefel (SF) at 47, even though the chart seemed to be indicating a test of the low a few dollars further down. But I am largely ignoring technical analysis - Lew Rukeyser thought it was voodoo - but sure enough, the stock went straight down all day closing under 45. The consolation is that I am staying with my system, making decisions unemotionally in what is becoming a pressure cooker market for many, and my system requires me to keep a lot of dry powder. Buy side investors should be prepared to spend a prolonged period under water.

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